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Rules Digest -- March 1999
Scheduled for committee review - April 12, 1999 - Room #22
For further information, please contact Joe Royce, Legal Counsel,
Administrative Rules Review Committee
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ADMINISTRATIVE RULES REVIEW COMMITTEE
Rules Digest -- March 1999 Scheduled for committee review - April 12, 1999 - Room #22 For further information, please contact Joe Royce, Legal Counsel, Administrative Rules Review Committee |
| ALL AGENCIES Uniform rules on agency procedures, IAB Vol. XXI, No. 19 and 20, NOTICE. |
The March 10th and 24th Bulletins are greatly enlarged, with the 24th being the largest in history. This temporary increase is due to the adoption of the uniform rules of agency procedure by every state agency. In 1986 a gubernatorial task force was created to draft a uniform set of rule-making procedures to be used by all agencies. This task force was headed by Professor Arthur Bonfield, who drafted Iowa's Administrative Procedures Act. The final product was designed to supplement and expand the skeletal procedures set out in Iowa Code Chapter 17A. Between 1987 and 1990 the uniform rules were adopted by virtually every state agency. 1998 legislation necessitated the revision of the uniform procedures. This work was performed by an Attorney General's task force headed by the late Elizabeth Osenbaugh. It should be noted that the requirements of the uniform procedures are greater than those required by chapter 17A. The rules attempt to create a procedure that maximizes public participation and awareness in the rulemaking process. The current influx of rules is caused July 1st effective date of 1998 Iowa Acts, Chapter 1202, containing the revisions to the Administrative Procedures Act. Arguably the most significant change in the uniforms rules is perhaps the detail added to declaratory rulings, now styled as declaratory orders. This uniform rule, identified as an entire uniform chapter, adds significant detail to this process, including a step-by-step process to be followed by all agencies.
Other topics covered in the uniform rules for rulemaking include:
A similar model set of rules are available for contested cases. To date agencies have been slower in adopting the 1998 changes.
| CRIMINAL AND JUVENILE JUSTICE PLANNING NO REP, Juvenile accountability , IAB Vol. XXI, No. 19, ARC 8740A, emergency. |
The division emergency adopts rules to provide the state and units of local government with federal Juvenile Accountability Incentive Block Grant Program funds to develop programs to promote greater accountability in the juvenile justice system. This program is administered as part of the federal Juvenile Justice and Delinquency Prevention Act (JJDPA) of 1974 and its subsequent amendments. The rules establish 12 basic uses for the funds, including such things as the construction or renovation of detention facilities, the hiring and training of necessary personnel, including judges and prosecutors, administrative services and equipment needed by juvenile justice workers and so forth.
| DEPARTMENT OF ECONOMIC DEVELOPMENT 9:10, Use of Social Security numbers , IAB Vol. XXI, No. 17, ARC 8696A, 70 day delay. |
These new rules describe the information DED is required to submit to Workforce Development for its accountability system. DED is required to compile information concerning individuals trained under various programs. The rules provide for the use of social security numbers to access the required information. Iowa Code §84A.5 requires the department, along with the department of education, and training providers to report information concerning the use of any training or retraining funds to the department of workforce development in a form as required by the department. The only effective way to accomplish this is though the use of social security numbers. This "accountability system" evaluates all of the following:
The question concerning this requirement involves section 7 of the federal Privacy Act of 1974 which states that no one can be denied a privilege or benefit for failure to disclose his social security account number. Moreover, any request for disclosure must also inform the individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited and what uses will be made of it.
The department promises that efforts will be taken to ensure that the confidentiality of individual social security numbers is safeguarded and that aggregate information will be used for reporting purposes whenever possible rather than using individual social security numbers.
| ETHICS AND CAMPAIGN DISCLOSURE BOARD 8:45, General revision , XXI IAB No. 20, ARC 8807A, adopted. |
The board completes action on a series of changes to its campaign disclosure rules. Some are merely housekeeping changes while others represent substantive changes in policy. Most of the contested case procedural changes are in response to the 1998 revisions to the Administrative Procedures Act.
The first important change relates to the situation where an individual wishes to challenge an administrative resolution of an enforcement matter. In order to seek judicial review the individual must first demand a contested case before the board. Under the change, if the board finds that a violation did indeed occur it would not be bound by the sanction proposed in the resolution, and could instead impose any sanction lawful under §68B.32D. Another significant change, in response to a federal court case, would change the phrase "support or oppose" to the more definitive "expressly advocates" though out the board's rules. It should be noted that "support or oppose" appears in Iowa Code Chapter 56 itself; thus the statute itself should be changed to reflect this judicial requirement.
Another change would provide that an affirmative vote of four members is needed for a motion to pass. This change is in deference to the ARRC policy that boards and commissions should act only on a majority of the entire board.
One last change add penalties for the delinquent filing of Executive Branch; the penalties are similar to those imposed for campaign delinquencies.
| HUMAN SERVICES DEPARTMENT 8:00, HAWK-I program -- appeals process, IAB Vol. XXI, No. 19, ARC 8726A, adopted. |
This filing was originally published as an emergency rule in January; the department now completes action on a regular rulemaking to supplant that emergency. This provision did not appear in the initial notice of intended action for the Hawk-I program, published in November. It was added later, apparently at the insistence of the providers.
This filing relates to the appeal rights of enrollees and provides that enrollees must follow the internal grievance procedure established by the administrator -- no appeal right to the department exists. In essence this means that the enrollee will not have the traditional due process protections set out in the Administrative Procedures Act, such as an opportunity for an independent hearing before an administrative law judge provided by the Department of Inspections and Appeals, although the provider's decision could be challenged in district court.
| INSPECTIONS AND APPEALS 10:40, Code of judicial conduct, IAB Vol. XXI, No. 17, ARC 8797A, adopted. |
The 1998 revision to Iowa's Administrative Procedures Act, 1998 Iowa Acts Chapter 1202 §3(7), imposes a number of significant duties on the Department, specifically relating to operations of the Division of Administrative Hearings. Subsection seven specifically mandates that the division promulgate rules in a number of areas. The Department now proposes rules to implement the most important of these rule-making mandates, the Code of Administrative Judicial Conduct; in short, a code of ethics for ALJ's and others who serve as presiding officers in contested cases. These "others" are generally licensing board members who collective sit as the presiding officer in licensee disciplinary matters.
The rules state the canons apply to "presiding officers", but note that the statute itself says that the canons "shall separately specify" which provisions apply to non-ALJ presiding officers. §7(3) of the Act specifies that the department should "tak[e] into account the objectives of the code and the fact that agency heads, unlike administrative law judges, have other duties imposed upon them by law". It appears the intent of the Act was to have less stringent {or at least different} canons applied to non-ALJ decision-makers. In an initial draft a code was drafted specifically for ALJs, modeled after the code applicable to the judiciary; this would have been supplemented by a simpler code applicable to non-ALJs. Rather than establish two parallel systems, the final proposal is a single code which is less rigorous than the version used by Iowa's courts; thus it is made applicable to all presiding officers, whether they are ALJ's, board members or agency heads. This unified system will work, but the preamble to the final draft should state that a single code will be used.
The statute also provides that provisions applicable to non-ALJ decision-makers must be approved by the rules coordinator. The preamble to the notice does not indicate that this approval has yet been obtained. This should be clarified in the final adoption.
The canons themselves are based on the code of ethics applicable to Iowa's courts. One point to be noted is the recurring use of the word "should". In statutes and rules this word is traditionally avoided. The word "should" is ambiguous; it makes a suggestion but on its face carries no mandate. Statutes and rules use well-defined words: "shall" which imposes a duty; "must" which states a requirement and "may", which confers a power {Iowa Code §4.1(30)}. The canons of judicial ethics have traditionally used the word "should", thus this set of canons follows that tradition. The canons use the "should" to ensure that surrounding fact circumstances are always taken into account when making case-by-case determinations. Moreover, in ethics cases courts generally treat "should" as a mandatory phrase. The potential problem is that board or commission members may not be familiar with the more definitive court interpretation. As lay persons they are more likely to treat should as a mere suggestion.
It might be useful to consider combining the use of "shall" and "should" in the canons, thus creating some principles that are absolute and some that are a bit more relative in their application. Each of the four canons begin by establishing a broad, general principle; each of these should be stated as a duty, using the word "shall". Since they are so fundamental to the proper administration of a contested case they should always be mandatory. Each canon is then supplemented by a series of more specific principles. Each of these sub-principles should be examined to determine whether it should be made mandatory or should remain advisory. For example 10.29(3)"a"(1) states in part "A presiding officer should be faithful to the law_" Such a provision should be mandatory; a presiding officer who is not faithful to the law breaches the most fundamental duty of the office. However, 10.29(3)"a"(2) states in part "A presiding officer should maintain order and decorum_" While this is important, it probably doesn't rise to the level of a solemn duty that must be rigorously followed at all times.
| LOTTERY DIVISION 9:00, Lump sum payments, IAB Vol. XXI, No. 20, ARC 8856A, notice. |
Previous rules required winners to accept annuity payments for larger prizes. Under federal IRS tax law if the recipient had any discretion to choose between an annuity and a lump-sum settlement the IRS would deem the entire prize under the constructive control of the winner and thus impose income tax based on the entire amount. That federal law has now been changed allowing the winner to elect either an annuity or a lump sum settlement. This amendment will allow a prize winner to accept an annuity or to request a discounted cash settlement from the commission or obtain a settlement from a commercial firm if a more lucrative offer is made.
| DEPARTMENT OF PUBLIC SAFETY 10:00, Group homes in residential neighborhoods , IAB Vol. XXI, No. 15, ARC 8602A, 70 day delay. |
This issue involves a long standing dispute between the fire marshal's office and the City of Windsor Heights. The issue is whether a group home for victims of Alzheimer's disease is subject to local fire safety codes, or whether the state fire marshal has exclusive jurisdiction. Iowa Code §135C.2, subsection (5) states that local governments cannot have a fire code more restrictive than the code established by the state fire marshal for certain specialized licensed facilities. Specifically, "facilities which serve persons with mental retardation, chronic mental illness, a developmental disability, or brain injury, _ and which contain five or fewer residents."
It is critical to note the exemption from local fire codes is set out in one of the paragraphs supplementing subsection (5). This is important because the adopted rule states:
5.620(1) Scope. This rule applies to specialized licensed facilities licensed under the provisions of Iowa Code section 135C.2 and having three to five beds forthe mentally retardedindividuals who are infirm, convalescent, or mentally or physically dependent.with three to five beds.
The change was implemented because the statutory language had long since expanded beyond the mentally retarded. However, the change inadvertently adopts language from the wrong subsection, taking language from Iowa Code §135C.2, subsection (1), which is separate and distinct from subsection (5). Thus a facility housing persons as described in subsection (1) is not subject to the exemption.
However, the language adopted by the fire marshal may well be moot. The actual license for a special facility is granted by the Department of Inspections and Appeals {DIA}; it is the type of license granted by the DIA that determines whether the exemption applies. As long as that license is for a facility that serves persons with mental retardation, chronic mental illness, a developmental disability, or brain injury the exemption from local fire safety rules probably applies, regardless of the term used by the fire marshal.
The DIA rules are set out in 481 IAC 63.47. Subrule 63.47(9)"c" defines chronic mental illness as including "adults aged 18 or older, with persistent mental or emotional disorders that seriously impair their functioning relative to such primary aspects of daily living as personal relations, living arrangement or employment."
Under this definition Alzheimer's disease would seem to meet the definition of a mental illness. This in turn would make the facility eligible for a specialized license under Iowa Code §135C.2(5). The conclusion is that an Alzheimer's facility, for three to five beds would come under the exclusive jurisdiction of the fire marshal regulation, as long as that facility has been properly licensed by the Department of Inspections and Appeals.
| DEPARTMENT OF REVENUE 9:30, Property tax on condominiums , IAB Vol. XXI, No. 19, ARC 8725A, adopted. |
For the third time the committee examines the departments proposal relating to the property tax imposed on condominiums. The rule is scheduled to go into effect on April 14th, 1999. The rule states that a condominium is to be valued as commercial property if over half the units are not sold or being offered for sale. The Legislature is currently considering language allowing local governments to approve or disapprove future conversions. This would provide a temporary "fix" to this issue, allowing the legislature additional time to craft a more permanent solution.
| WORKFORCE DEVELOPMENT 11:00, Unemployment benefits, IAB Vol. XXI, No. 17, ARC 8648A, item 13, held over from March |
Due to the March snowstorm the committee placed a seventy day delay on this filing, scheduling it for April 12th review. Item 13 states that an applicant may receive unemployment benefits after a voluntary quit in the following circumstance:
"24.26(14) The individual left employment due to workplace or domestic violence perpetrated against the individual at, around or in connection with the work. The individual must make all reasonable efforts to continue in the employment and be forced to quit in order to protect the individual's own safety".
This new subrules comes from the federal Department of Labor and various abused spouse organizations and state civil rights organizations. The test for eligibility is whether a reasonable person would feel compelled to quit his or her employment; there must be evidence of stalking, such as a restraining order, police calls to work, advice of police, actual violence, etc. In short, evidence must be provided that a reasonable person would conclude compels that person to leave for his or her own safety.
The rule is controversial because the end result is that the benefits paid under this rule are charged to the employers' account even though the employer had no role or fault in the underlying dispute. More particularly, opponents note that the underlying statute--§96.5(1) sets out nine specific circumstances where a voluntary quit still entitles the applicant to unemployment benefits. None of these paragraphs relate to workplace or domestic violence. The basic doctrine in such cases states the express mention of one thing in a statute implies the exclusion of those things not mentioned. Bennett v. Iowa Dept. of Natural Resources, 573 N.W.2d 25 (Iowa 1997).
| TRANSPORTATION DEPARTMENT 10:15, Logo signing, IAB Vol. XXI, No. 21, ARC 8789A, notice. |
Iowa is one of the few states that makes a serious effort to curtail advertising along its highways. The only commercial signs available are small "logo" signs, advertising gas, food, lodging and camping services. The department proposes a fifth category, tourist attractions. This new logo must replace of one the signs already in place -- no new slots will be available.
The rules also provide for "trailblazing" signs. These signs will direct the motorist to the advertised service once they have left the highway itself.
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